Thursday, November 1, 2012

The Obama administration's April 4, 2011 "Dear Colleague" letter, which lowered the standard of proof to find guilt in cases of sexual misconduct on campus to a mere "preponderance of the evidence," is an affront to the community of the wrongly accused because it mandates that schools change their rules to make it far too easy to punish the innocent for offenses they didn't commit. The suggestion that this standard is necessary to comply with the law is simply wrong. Colleges are legally permitted to apply a clear presumption of innocence to disciplinary proceedings, and civil-rights laws like Title IX do not override that right. Colleges are liable only for their own culpable failure to respond to harassment in a reasonable fashion, but such response does not require dispensing with students' clear presumption of innocence.

Yet, for the first time, some who call themselves progressives are applauding a government effort to roll back, in a blatant and significant way, the due process rights of persons accused of wrongdoing.

First, Ms. Greenier makes this erroneous statement: "The OCR advised the schools to use the standard of a 'preponderance of the evidence' that is usually applied in civil rights lawsuits and administrative proceedings rather than the heightened proof standards normally applied in criminal proceedings."

In fact, most schools previously utilized the "clear and convincing evidence" standard, which is lower than the criminal standard of "beyond a reasonable doubt." The "clear and convincing" standard is sometimes applied in civil actions for monetary damages, and college disciplinary proceedings implicate interests more significant than civil actions seeking monetary damages. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell has explained.

Second, Ms. Greenier's statement suggests a fealty to group identity politics that has the perverse effect of allying progressives with law and order conservatives who typically have foughtthe expansion of individual due process rights at every turn.

Over the past century, valiant progressives at the ACLU, the Southern Poverty Law Center, and many other organizations fought to uphold due process rights for Americans any time they were in danger of being taken away. In the 1950s and 60s, they waged many famous battles to insure that presumptively innocent persons accused of crimes were afforded individual due process rights. At other times, they successfully advocated that communists seeking to exercise First Amendment rights, that Japanese-Americans imprisoned during World War II, and that the homeless rounded up just for being on the streets, were all entitled to due process. One could probably chronicle the history of our nation in the 20th Century by tracing the unstinting efforts of liberal reformers to insure that the innocent aren't punished by unjust laws. Their efforts made our people more tolerant of one another, and more accepting of diversity.

It is for this reason that the Obama administration's April 4, 2011 "Dear Colleague" letter, and the wholesale acceptance by some progressives of that letter, are so jarring, and so wrong. Those who defend the "Dear Colleague" letter sweep over the rights of the presumptively innocent like a high-speed rail and do not address even the possibility that a college disciplinary proceeding might get it wrong when the standard of proof is so low.

Some of those same progressives will read this post and will roll their eyes at the very suggestion that a law affecting primarily young white males is worthy of anyone's advocacy. That attitude itself is, of course, a betrayal of the principles of equal justice under law, and it evinces an unbecoming PC elitism that sadly flavors the efforts of the campus sexual grievance industry.

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Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. The latter concern typically is absent from the public discourse. Accusations of serious criminality, especially alleged sexual wrongdoing, are often their own convictions in the high court of public opinion because the stigma is so severe, and because definitively proving innocence in a disputed sex case often is impossible. This blog highlights the injustices suffered by persons wrongly accused of serious criminality.